Citation NR: 9718135
Decision Date: 05/22/97 Archive Date: 06/03/97
DOCKET NO. 96-36 873 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to nonservice connected pension benefits.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Pickard, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1979 to May 1982.
This appeal arises before the Board of Veterans’ Appeals
(Board) of the Department of Veterans Affairs (VA) from a
decision of August 1996 from the Montgomery, Alabama,
Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he is entitled to nonservice
connected disability pension benefits.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s claim lacks
legal entitlement, and it is therefore denied.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claim has been developed.
2. The veteran did not have military service during a
wartime period.
CONCLUSION OF LAW
The appellant is not eligible for nonservice connected
pension benefits. 38 U.S.C.A. § 1521.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The law authorizes the payment of pension benefits to a
veteran of a war who has the requisite service and who is
permanently and totally disabled from a disability which is
not the result of the veteran’s willful misconduct.
38 U.S.C.A. §§ 1502, 1521. A total disability rating is
based primarily on the average impairment in earning
capacity, that is, upon the economical or industrial handicap
which must be overcome and not from individual success in
overcoming it.
Basic entitlement for nonservice connected pension benefits
requires that the veteran serve during a period of war.
38 U.S.C.A. § 1521. As stated above, the veteran served on
active duty from May 1979 to May 1982. This period of
service does not include a wartime period as defined in
38 C.F.R. § 3.2 (1996), and as such he is ineligible for
nonservice connected pension benefits.
ORDER
The veteran’s claim for nonservice connected pension benefits
is denied.
MARK W. GREENSTREET
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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